87 S.W.2d 175 | Mo. | 1935
The appellant, a negro woman, was convicted of murder in the second degree in the Boone County Circuit Court and her punishment assessed by the jury at ten years' imprisonment in the penitentiary, the minimum prescribed by Section 3984, Revised Statutes 1929. She shot and killed a negro named William "Dutch" Jones, who had been living with her for two years. There was no denial of the homicide; her defense was self-defense. The assignments of error in her brief and reply brief on this appeal complain of the giving of one instruction for the State; of the refusal of an instruction requested by her; of the admission and exclusion of testimony; and of alleged improper argument by the prosecuting attorney.
There were no eyewitnesses to the killing, which occurred in the appellant's home in Columbia about five o'clock in the morning of May 7, 1933. The State's proof of the detailed facts consisted mainly of a written statement given by the appellant to the police a short time afterward, which was introduced in evidence without objection. This statement was as follows:
"On the morning of May 7th, 1933, about daybreak, `Dutch' Jones and myself returned home from a dance in Callaway County. `Dutch' had gone to the dance without me and I had followed him out there. We quarreled there at the dance, and then started home, and while on the road home we quarreled again; this quarrel led to a fight and we got out of the car and fought a while; while we were out of the car `Dutch' drew a gun and was going to shoot me, but instead of shooting me he shot himself in the foot. Then we got back in the car and argued some more, this time he beat me over the head with the gun. After we arrived home we argued again; this time he told me he was going to kill me. I told him he might if I did not beat him to it. I left him sitting in a chair in the front room and went into the bedroom and got a gun and went back into the front room where he was still sitting in the chair and shot him through the head. Then I ran out the front door and threw the gun away. I then went to Mayme Givans' home and told her what I done and asked her to call the police. She refused to call the police, but did call Dr. Moore, and after the Doctor arrived Mamie Givans called Stewart Parker at Doctor Moore's request."
Several of the police officers testified to oral admissions made by the appellant shortly after her arrest, substantially the same as those embodied in her written statement, but a little fuller. The principal *888 additional facts contained in these oral statements were that when appellant went out to the dance she found the deceased with two girls sitting on his lap; and that after appellant went to the bedroom in her home and got a pistol she came back through the front room, passed the deceased as he sat in a chair fixing his wounded foot, on her way to the front door, and then shot back at him as he sat in the chair.
The appellant lived in a house with three rooms in a row on the south side of a partition and three on the north side. Her mother had the north rooms; she occupied the east two of the south three rooms. The middle one of these was a bedroom. The east room fronted on the street with a door opening thereon. An overstuffed chair was sitting in this room three or four feet from the front door and a little south thereof, with the back toward the door. The deceased was sitting in that chair. When Dr. O.A. Moore, who was called as a witness by the State, reached the house about five A.M., evidently very soon after the homicide, he found the chair in the position just stated with blood on it. The front door was open. The deceased was lying unconscious on the floor close to the south side of the chair. There was a bullet wound in his right foot between the big toe and the second toe and a bullet wound on the right side of his face about midway between the ear and angle of the lips. This latter bullet ranged upward and backward passing clear through the brain. It was a fatal wound causing the death of the deceased. The wound in the head, in the doctor's opinion, was made with a .38 caliber pistol; and the wound on the foot with a .32 or smaller caliber pistol. The wound on the foot had ceased bleeding and had been made earlier than the head wound, which was bleeding profusely. The shoe and sock were off of the wounded foot. From the position of the chair and the course of the bullet it was the doctor's opinion that the deceased must have been sitting straight up in the chair when shot. He thought the bullet would not have ranged upward, as it did, if the deceased had been bending down over his foot at the time.
Later at the police station about eight o'clock in the morning Dr. Moore dressed the wounds of the appellant. She had a cut about one and one-half inches long on the left side of her head where the part in her hair would be, and a long three-cornered cut over the left eye, about one inch long. There were some abrasions on her left knee and a few scratches on her right knee. The wounds on her head had been made with some blunt instrument. He treated them for about ten days. Dr. Hugh P. Muir also examined the appellant's injuries at the city jail. He described them about as Dr. Moore had, except he said there was a lacerated, bruised area about the size of a pigeon egg on the left side of her head, which was bleeding a good deal. *889
There was also testimony, adduced by both sides, which showed that the interior of the automobile in which the appellant and the deceased rode back to Columbia from the dance (which was several miles in the country) was bloody. There were blood stains on the cushion, seat covers and floor of the car. A witness named Richard Douglas searched the car on May 15, eight days after the homicide. He found a revolver wrapped up in rags behind the seat cushion. Two empty shells were in it. It was shown that one of the appellant's attorneys had directed the witness to clean the car, which belonged to the appellant. The revolver was introduced in evidence but the record does not state the caliber of the weapon. Presumably it was the appellant's theory that this was the revolver the deceased used in beating her on the way back to Columbia from the dance. The prosecuting attorney by his questions intimated that the revolver had been "planted" in the car.
On the witness stand the appellant told about going to the dance in the country and finding the deceased there, of their drive back to Columbia, and of his beating her over the head with a revolver on the way. After they had got to her home, her account of the homicide and the events immediately preceding, was as follows: She said she wanted to call a doctor, or her mother, or somebody to dress her wounds but that the deceased would not permit it and would not allow her to go out of the house. So she undressed and put some cotton on her wounds and the deceased went in to the front room and sat down, complaining about his wounded foot. She again asked him if he was going to let her go to the doctor or call somebody and he said, "No, I ain't. I am going to kill you. I have been to the penitentiary once and I am going again." She said "You have almost killed me now." From there on her testimony was as follows:
"Then I went to the dresser and got the revolver and he was still sitting in the chair, fooling with his foot, and I come along with my clothes under my arm and went to open — went to pass him, and he was looking at his foot while I passed him, and I got to the door and he looked up at me and said, `You son of a bitch, don't you open that door, — you ain't going out of here.' About that time, I tried to get out again and he said, `You son of a bitch, I am going to finish you right now,' and he got up and jumped at me and that is when I fired the pistol."
The appellant testified that she shot the deceased because he declared he was going to kill her, and it was the only way that she had to protect her life; and that she was so nervous and upset when she gave her statement to the police soon afterward that she did not know what she was doing. She said she walked past the deceased as he sat in the chair, and attempted to go out the front door because the back door of the house was fastened tight and was hard to open. *890 She also said she was afraid to go out the back way and that there would be a better chance to go out the front door because it was easy to open. She stated she could not have run out behind the house because there were rocks out there, and a picket fence which would have forced her to come back by the side of the house and she was afraid the deceased would get her if she came that way. In rebuttal the State showed that if she had gone out the back door she could have come around either side of the house to the front and thence into the street.
[1] I. Instruction No. 6 given at the request of the State was as follows:
"The Court instructs the jury that before you can acquit the defendant on the ground of self-defense you ought to believe that the defendant's alleged cause of apprehension was reasonable. Whether the facts constituting such reasonable cause have been established by the evidence, you are to determine, and unless the facts constituting such reasonable cause have been established by the evidence, you cannot acquit on the ground of self-defense, even though you may believe that the defendant actually thought she was in danger. But on the other hand, the law does not permit a person to voluntarily seek or invite a combat, or to put herself in the way of being assaulted in order that when hard pressed she may have a pretext to take the life of her assailant or to do him some great bodily harm. The right of self-defense does not imply the right of attack, and it will not avail in any case where the difficulty is sought for and induced by the party by any willful act of hers, or where she voluntarily and of her own free will enters into it, no matter how imminent her peril may become during the progress of the affray. The necessity being of her own creation will not operate to excuse her. Nor is anyone justified in using any more force than is apparently necessary to get rid of her assailant. But if she does not bring on the difficulty nor provoke it, or voluntarily engage in it, she is not bound to flee to avoid it, but may resist with adequate and necessary force until she is safe.
"Now if you believe from the evidence in this case that the defendant voluntarily sought, invited or brought on the difficulty in which William Jones was shot, if so, or that she provoked or commenced or brought it on by any willful act of her own, then in that case you are not authorized to acquit the defendant upon the ground of self-defense, and this is true no matter howsoever hard she was pressed, or how imminent the peril became during the progress of the affray. In determining who provoked or commenced the difficulty or made the first assault, you should take into consideration all the facts and circumstances in evidence before you."
(a) Appellant first assigns error in the giving of this instruction, *891 contending there was no evidence to support the hypothesis submitted in the second paragraph thereof, that she voluntarily sought, invited or brought on the difficulty in which the deceased Jones was shot, or that she commenced or brought it on by any willful act of her own. In provoking a difficulty, it is said in 30 Corpus Juris, section 212, page 48, the acts of provocation "must have been committed at the time the homicide occurred, and must have related to the assault in the resistance of which the assailant was killed." On the other hand, the rule as stated in 13 Ruling Case Law, section 136, page 832, is that "the fault in bringing on a difficulty which will deprive one of the right of self-defense is not confined to the precise time of the fatal encounter which results, but may include fault so closely connected with the difficulty in time and circumstances as to be fairly regarded as operating to bring it on."
Even if it be conceded the appellant sought or brought on the quarrel at the dance and the quarreling and fighting on the way home, we think their connection with the combat and shooting was too remote to make them a part of "the difficulty" within the meaning of the law and the above instruction. Hostilities had ceased, but it appears that after the appellant and Jones reached her home they renewed their quarrel. He told her he was going to kill her but he made no move to do it; he was sitting in a chair fixing his wounded foot. She told him he might if she "did not beat him to it." She went to the bedroom, got a revolver, returned to the front room and passed the deceased on her way to the door as he sat in the chair engaged with his foot. The evidence does not show whether she had the weapon concealed. At the trial she testified he then jumped at her and she shot him in self-defense. We think, however, the evidence favorable to the State warranted an inference that she was not on the defensive, and that she came in provoking proximity to him when he was not on the aggressive, intending to shoot him. At least there is ground for the conclusion that she armed herself and voluntarily entered into the difficulty without being driven to that extremity and self-defense. And it has been held that when two persons engage in mutual combat in such circumstances the law will regard both as the aggressors. [State v. Spears, 46 La. Ann. 1524, 1526; See 45 L.R.A., p. 704, note.] We therefore rule this assignment against the appellant.
[2] (b) The next assignment contends the instruction was erroneous because it told the jury: "Nor is anyone justified in using any more force than is apparently necessary to get rid of her assailant." On this point appellant cites State v. Hopkins,
In the Hopkins case this Division condemned the following language *892 in an instruction: "No one is justified in using more force than is necessary to get rid of an assailant." Commenting thereon the opinion says: "It is well settled that a person is not required to nicely gauge the amount of force necessary to repeal an attack, but that he may act on appearances." In the Roberts case the court en banc said: "We desire to say that the sentence, `nor is anyone justified in using any more force than is necessary to get rid of his assailant,' has no proper place in an instruction on self-defense." The opinion italicized the words than is necessary, showing, in connection with the Hopkins case, the objection to the instruction was that it held the defendant to an absolute standard of the amount of force necessary to repel the assault instead of the amount apparently necessary. The Creed case followed the Hopkins and Roberts cases. The Ball case held bad an instruction which added the word reasonably, thus: "No one is justified in using any more force than is reasonably necessary to get rid of an assailant or to repel an assault made upon him."
But these cases do not help appellant. The instruction in the instant case used the word apparently, saying, "No more force than is apparently necessary." Furthermore, the court gave an instruction lettered I for the appellant telling the jury "nor was the defendant required to nicely measure the proper quantity of force necessary to repel the assault, but that she could use any means for her own protection that appeared reasonably necessary under the circumstances." For these reasons we hold the instruction is not open to the attack made by appellant under this assignment.
[3] (c) It is next assigned by appellant that the instruction is prejudicially erroneous because of the unqualified statement therein that "the right of self-defense does not imply the right of attack." We think appellant's contention is correct. An instruction containing the language, and the same whole sentence as that in which the quoted language appears in the instruction in this case, was condemned in State v. Rennison,
(d) Appellant's fourth assignment complains of the charge in the instruction that the right of self-defense will not avail in any case where the defendant voluntarily and of her own free will enters into the difficulty. Several times instructions containing the same or similar language have been condemned by this court. [State v. Burns,
(e) Appellant makes still another assault upon the part of the instruction which says the right of self-defense will not avail in any case where the difficulty is sought for and induced by the party by any willful act of hers, or where she voluntarily and of her own free will enters into it; also upon the charge in the second paragraph thereof that if the jury believed the appellant voluntarily sought, invited or brought on the difficulty in which William Jones was shot, or that she provoked or commenced or brought it on by any willful act of her own, they could not acquit her on the ground of self-defense no matter however hard she was pressed, or how imminent her peril became during the progress of the affray.
Appellant contends these parts of the instruction disregard the intent with which she entered the difficulty; and failed to inform the jury that she could only be convicted of manslaughter if she brought on the difficulty without felonious intent, and with a purpose only to commit a common assault or misdemeanor. In other words, the complaint is that the instruction deprived appellant of the right of imperfect self-defense to which she was entitled under State v. Partlow,
[4] Appellant also argues that the instruction disregarded evidence in the case tending to show she sought to abandon the difficulty and withdrew as far as she could. Both in her statement to the police and in her testimony at the trial the appellant said she got a pistol in the bedroom and walked past the deceased as he sat in a chair in the front room. She said at the trial he then jumped *894
at her and she shot him. In her statement to the police she said that immediately before this Jones had told her he was going to kill her and she replied that he might if she "did not beat him to it." Earlier in this opinion we held this evidence, viewed in the light most favorable to the State, made a prima facie showing that appellant provoked the difficulty. But she, also, was entitled to have the jury give consideration to those aspects of the evidence most favorable to her. At the trial she swore she was endeavoring to open the door and go outside when Jones forbade her to leave, jumped at her, and she shot him in self-defense. Even though she provoked the difficulty with felonious intent, still if she thereafter in good faith attempted to withdraw and that fact was apparent to the deceased, she did not lose her right of self-defense. [State v. Heath,
[5] II. Appellant complains of the refusal of the trial court to give at her request an instruction lettered L. This instruction told the jury that in passing upon the question whether she had reasonable grounds for believing there was imminent danger that Jones was about to kill her or do her great bodily harm they should determine the matter from the standpoint of the appellant at the time she acted and her surroundings at that particular instant of time; and that they must also take into consideration any threats or assaults made by Jones against and upon her prior to the shooting; also anything done or said by Jones at the time of the shooting indicating a purpose on his part to carry such threats into execution. The case cited in support of the instruction is State v. Hollingsworth,
[6] III. After the appellant had testified, the State was permitted to prove in rebuttal by six witnesses that her general reputation *895
in the community for morality prior to the homicide was bad. Her counsel objected and excepted to this line of testimony, urging that her character was not open to attack since she had not put it in issue, and that for the purpose of impeaching her as a witness only her reputation for truth and veracity could be shown. The point was duly preserved in appellant's motion for new trial, and she here assigns the trial court's ruling as error, citing State v. Scott,
Ever since the decision of State v. Shields,
The Scott case, supra, decided two years ago, in March, 1933, did not attempt to overrule this line of decisions, but the writer hereof, who was the author of that opinion, with the concurrence of the other judges of this Division, expressed the view that "the `morality rule' is impractical, confuses the issues, and is unfair to the defendant;" and also said, "It would be much better if Missouri were fully in line with the prevailing view elsewhere and the inquiry were limited to the real issue — reputation for veracity and honesty." The morality rule has since been twice applied by this Division, in State v. DeShon,
It is thoroughly established that the State cannot attack the character of the accused in a criminal case for the purpose of impugning him as a defendant unless he first puts his good character in issue *896
by introducing evidence to sustain the same; and even then the evidence pro and con must be confined to his general reputation for the particular traits involved in the offense charged. [State v. Beckner,
For this reason, mainly, our decisions have followed the rule grudgingly through the years. In State v. Shroyer,
In another respect this court has faltered in the application of the impeachment statute, Section 3692, supra, because of its unfairness to the defendant. Ever since the decision of State v. Grant,
But beginning with State v. Wellman,
From this it follows that we cannot exclude the defendant from the operation of the morality rule and make it apply only to ordinary witnesses, as is done in some states: People v. Hinksman,
This view has the approval of commentators. [2 Wigmore on Evidence (2 Ed.), sec. 922, p. 301; Jones on Evidence (3 Ed.), secs. 860, 861, pp. 1356, 1360; Greenleaf on Evidence (16 Ed.), sec. 461a, p. 576.] And such is the rule followed in the great majority of jurisdictions in the United States. As gathered from 70 Corpus Juris, sec. 1039, page 826, 2 Wigmore on Evidence (2 Ed.), section 923, page 304 et seq., and the 1934 Supplement thereto, page 378, and some brief, hurried research of our own, it appears that in nine states1 the rule is fixed by statutes permitting evidence as to the general moral character of the witness for the purpose of impeachment. In three states2 the statute limits the inquiry to the reputation of the witness for truth, honesty and integrity. Where there is no controlling statute it seems that in only seven states3 may the inquiry extend to the general reputation of the witness for *899 morality; and in three of these4 the defendant is excluded from the operation of the rule. Also in some of these seven states, which follow the English practice, the proof of the bad general repute of the witness is connected up by a question to the impeaching witness whether in view of it he would believe the impeached witness under oath — thus proving the personalopinion of the impeaching witness as to the veracity of the impeached witness. This practice was once considered essential in Missouri but has long since been discarded. [State v. Pollard, 174 Mo. l.c. 621, 74 S.W. l.c. 973.] In twenty-two states5 the impeachment evidence is confined to the reputation of the witness for truth and veracity.
Aside from the weight of authority in other jurisdictions, reason favors the truth and veracity rule rather than the morality rule. The arguments for the latter are: (1) that bad general character, or moral degeneration, begets untruthfulness; (2) that it is often more obvious and easier to prove than is a lack of veracity; (3) and that since the bad character of a witness may be directly proven for the purpose of impeachment by evidence of former convictions of criminal offenses (see Sec. 1752, R.S. 1929) or by admissions of fact evidencing moral turpitude elicited from the witness upon cross-examination there is no reason why he should not be impeached by proof of his bad general reputation for morality.
The arguments supporting the truth and veracity rule are: (1) that it reaches directly the fundamental object of the inquiry; (2) that a general bad reputation for morality does not always necessarily import a lack of veracity; (3) that the conclusions of an ordinary impeaching witness on such a question are apt to be drawn inexactly from uncertain data, or to rest on personal prejudice or honest differences of opinion on points of belief or conduct; (4) that impeachment by methods so loose and inconclusive often exposes witnesses to undeserved obloquy and introduces collateral issues; (5) and that while witnesses may be directly discredited by proof of former convictions, or admissions of fact involving moral turpitude, still they ought not to be subjected to impeachment by indefinite hearsay, i.e., by proof of bad repute for morality. [2 Wigmore on Evidence (2 Ed.), sec. 922, p. 302; People v. Hinksman, 192 N.Y. l.c. 432, 85 N.E. l.c. 680.]
We think the latter arguments are the stronger. As we said in State v. Scott, 332 Mo. l.c. 264, 58 S.W.2d l.c. 279, 90 A.L.R. l.c. 867: "It may be true that a person whose general moral character is bad will be less likely to tell the truth than one whose character *900 is good, but since there is such a relation between character and credibility, if the witness's reputation for general morality be bad, why should not his reputation for veracity ordinarily be the same; and why should the impeaching witnesses not be asked that ultimate question? On the other hand, if in spite of a bad reputation for general character, qualified impeaching witnesses are unable to say the (reputed) veracity of the person under investigation is bad, why should an uninformed jury be permitted to draw that conclusion?" We therefore hold that State v. Clinton, supra, State v. Scott, supra, and all the cases herein mentioned following the morality rule should no longer be followed — from which it results that the trial court committed error in admitting testimony of the appellant's bad general reputation for morality to impeach her as a witness. In the 1934 Supplement to his treatise on Evidence, section 924a, page 379, et seq., Professor WIGMORE maintains that for psychosexual reasons an exception to the general rule should be allowed in prosecutions of men charged with sexual crimes against women, and that in such cases proof of the general bad repute of the prosecutrix for chastity should be admitted in evidence to impeach her as a witness. Obviously, a consideration of this question does not come within the scope of this opinion.
[7] IV. Counsel for appellant sought to prove by the witnesses Dr. O.A. Moore and Dr. Hugh P. Muir, physicians who examined the appellant after the homicide, that in their professional opinion her condition resulting from her injuries and nervousness, as they found and described it, was such as to affect materially the statements she made to the police shortly after the killing, and that she was not entirely capable of making a clear and concise statement of the facts at that time. The trial court sustained the prosecuting attorney's objections to the questions and counsel for appellant thereupon dictated into the record an offer of poof embodying the foregoing facts. The court excluded the proffered testimony on account of the form of the offer, and because the conclusions sought to be shown invaded the province of the jury and covered matters which were not the proper subject of expert testimony. These rulings are assigned as error on this appeal.
The general proposition is well settled that expert testimony by a competent physician or surgeon is admissible to show the effect commonly produced by injuries of a designated character upon the body and mind of a human being. [22 C.J., sec. 640, p. 544.] But in this instance when the appellant's statements to the police were proven by the State no objection was made by appellant's counsel to their admission in evidence. Furthermore the only offer of proof made was that her injuries and nervousness had or might have had a material effect on her statement and that she was not entirely capable of making aclear and concise statement. It was not contended *901 that she could not make a true statement of the facts. We think the court did not err in rejecting the proof, as offered.
V. The foregoing disposes of all assignments of error in appellant's brief except one charging improper argument by the prosecuting attorney. As the case must be remanded for other reasons we need not consider this assignment. There are several assignments in appellant's motion for new trial which were abandoned in her briefs on appeal. We find nothing in them meriting discussion. Because of the errors pointed out in the State's Instruction No. 6, and the erroneous admission of testimony concerning the appellant's reputation for morality, the judgment is reversed and the cause remanded. Division Two opinion is hereby adopted as the opinion of the Court en Banc. All the judges concur.
